30 November 2012
At the beginning of November 2012 Ms. Veneta Donova, attorney-at-law at Dimitrov, Petrov & Co. Law Firm, took part in the Openfest annual conference, dedicated to open source information technologies and ideas. At the conference Ms. Veneta Donova presented a lecture on “What should we know and observe to perform lawful activity through our website and not to be liable for the actions of its users?”. The lecture was focused on the main practical issues underlying the exiting legislation on the entering into contracts on the Internet. A brief review of the legislation was provided as well, highlighting the obligations stipulated therein for information society service providers with regard to consumers protection, information provision and personal data processing. An accent was put on the rules regarding the liability of providers for a third person’s content, as well as on providers’ obligation to provide particular information to the competent state authorities.
Decree No 267 of October 26, 2012 for the establishment of a Council for Intellectual Property Protection
Decree No 267 of October 26, 2012 for the establishment of a Council for Intellectual Property Protection is promulgated in the State Gazette, issue 84 of November 2, 2012.
The Council for Intellectual Property Protection (the Council) is an advisory body for coordination and cooperation between government institutions, local authorities and NGOs working in the field of intellectual property, in the implementation of the state policy in the field of intellectual property protection. The Council is established at the Council of Ministers.
The Council consists of a chairperson, members and a secretary, and shall hold open meetings at least quarterly on the basis of an adopted six-month preliminary schedule.
The Council may form working groups to prepare analyses, opinions, draft regulations and other materials in connection with its functions.
The Council Secretariat publishes on the website of the Ministry of Culture information about the Council's activities and the activities of the law enforcement authorities in the field of intellectual property protection based on data provided by the latter on a monthly basis.
Methodology for the conditions and procedure of definition, analysis and assessment of relevant markets, and criteria for designating enterprises with significant market power
The Methodology for the conditions and procedure of definition, analysis and assessment of relevant markets, and criteria for designating enterprises with significant market power (the Methodology) was promulgated in the State Gazette, issue 89 of November 13, 2012.
The Methodology is adopted with Decision No 2076 of October 23, 2012 issued by the CRC, and it revokes the existing hitherto Methodology adopted with Decree of the Council of Ministers No 40 of February 28, 2008 and promulgated in the State Gazette, issue 27 of Мarch 11, 2008.
This Methodology regulates:
1. the terms and procedure for collecting the necessary information and documents for definition, investigation and analysis of relevant markets for electronic communications networks and/or services;
2. the terms and procedure for carrying out analysis and assessment of the markets for electronic communications networks and/or services;
3. the criteria for relevant markets definition, and the assessment criteria for the existence of effective competition and for designating undertakings which, individually or jointly with others, have significant market power on the relevant markets for electronic communications networks and/or services.
The CRC shall define the relevant markets and analyze the level of effective competition on the markets, according to the list of markets identified in the European Commission Recommendation in effect on relevant markets in the electronic communications sector subject to ex-ante regulation.
"Ех-ante regulation" is a process of carrying out a forward-looking analysis, making also an evaluation of and assumption about the future development of competition on the relevant market, and imposing measures to achieve effective competition.
The Methodology includes mechanisms and formulas for calculation of the demand-side substitutability and the supply-side substitutability in the relevant product and geographical markets for electronic communications networks and/or services. Thus legal means are established for CRC to regulate and develop a competitive and fair environment for the development of relevant markets for electronic communications networks and/or services, in compliance with the principles of competition law.
For the purposes of these calculations, CRC demands information from the enterprises operating on the electronic communications services market. The Methodology and the Electronic Communications Act contain a requirement for the provision of the necessary information.
On the basis of the information collected, CRC shall carry out an analysis of the relevant market aimed at assessing:
1. the existence of preconditions which hinder the free competition and the functioning of the market, and could allow one or more undertakings operating on the relevant market to have a dominant position, individually or jointly, to an extent of being significantly independent of competitors, customers and end users;
2. the existence of possibilities for market power leverage into other related markets.
This Methodology transposes the provisions of Directive 2002/21/ЕО dated March 7, 2002 of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (Framework Directive (OB, L 108, April 24, 2002).
Moreover, this Methodology transposes the provisions of Directive 2009/140/ЕО of the European Parliament and of the Council of November 25, 2009 for amendment to Directive 2002/21/EO on the common regulatory framework for electronic communications networks and services, Directive 2002/19/EO on the access to and interconnection of electronic communications networks and associated facilities, and Directive 2002/20/EO on authorization of electronic communications networks and/or services (OB, L 337/37, December 18, 2009).
Thus, the Methodology for the conditions and procedure of definition, analysis and assessment of relevant markets, and criteria for designating enterprises with significant market power achieves synchronization between the national and European legislation.
Interpretative Decision No 5 of November 14, 2012 by the Supreme Court of Cassation
The General Meeting of the Civil Board and the Commercial Board of the Supreme Court of Cassation (GMCCB of SCC) adopted an interpretative decision on issues related to the possibility of exercising the right under Art. 124, Para 4 of the Civil Procedure Code (CPC) with respect to a document that has been provided in a particular case, but the claimant missed the deadline for appealing it pursuant to Art. 193, Para 1 of CPC.
In particular, the General Meeting of the Civil and Commercial Boards of the Supreme Court of Cassation was referred to for resolution on three individual issues related to the aforesaid procedural right. The specific decisions adopted by SCC are as follows:
1. A claim for ascertaining the inauthenticity of a document under Art. 124, Para 4, sentence 1 of CPC is inadmissible if the claimant’s legal interest is drawn on the possibility to refer to an effective decision on the claim of ascertainment in the pending claim proceedings, where the document has been presented, but the claimant has missed the deadline for appealing it pursuant to Art. 193, Para 1 of CPC.
2. The claiming under Art. 124, Para. 4, sentence 1 of CPC in the aforesaid hypothesis does not provide grounds pursuant to Art. 229, Para 1, item 4 of CPC for termination of the proceedings of the case in which the document has been presented.
3. A claim for ascertaining the inauthenticity of a document under Art. 124, Para 4, sentence 1 of the CPC is inadmissible if the claimant’s legal interest is drawn on the possibility to use the court decision on the claim of ascertainment as the grounds for revocation under Art. 303, Para 1, item 2 CPC of the enforced decision on the case in which the document has been presented, but the claimant has missed the deadline for appealing it under Art. 193, Para 1 of CPC.
On November 15, 2012, Plamena Georgieva, IP attorney and Senior Associate at Dimitrov, Petrov & Co. Law Firm, participated as a lecturer on “Domain Names Dispute Resolution” at the event dedicated to the domain industry – Domain forum 2012, organized by UNINET, Bulgaria. UNINET is a Bulgarian association of domain registrars, working since 2007 towards creation and introduction of Internet top-level domains, written with Cyrillic characters. Their major project is the first level domain “.бг”. The event focused on new top-level domains, International Domain Names (IDN) issues, domain registrars, marketing discussions, legal and business questions, technical session and Internet governance.
In her lecture, Plamena Georgieva drew attention to various aspects in the intellectual property area, focusing on the Protection of Competition Act, the conflicts between trademarks and domain names, as well as on alternative methods for resolving disputes with domain names. In addition, Plamena Georgieva illustrated her theses as giving examples of some frequent breaches of the Protection of Competition Act and how they could be avoided. Plamena Georgieva specified the connection between trademarks and domain names, gave examples of the most common disputes that arise and elaborated on the different procedures to resolve them.
Act for Amendment and Supplement to the Value Added Tax Act (AASVATA)
AASVATA was promulgated in the State Gazette, issue 94 of November 30, 2012.
The main amendments introduced in the Value Added Tax Act (VATA) in the first place include the creation of Para. 4 and 5 in Art. 23, according to which the place of performance with respect to the provision of services for renting or providing for use of motor vehicles is the place where the customer is settled or has a permanent address or habitual residence. Where vessels for sports and entertainment are concerned, the place of performance is where the vessel is actually made available to the customer, when this service is actually provided by the provider from the place of establishment of its business activity or from a permanent facility situated at this place.
Art. 26, Parа. 2, sentence 2 is amended in the following way: Any payments of penalties and compensatory interest are not considered to be remuneration for supply. In Para. 6 sentences 2 and 3 have been created: The equivalence in BGN of the currency may be determined according to the latest exchange rate published by the European Central Bank as of the moment when the tax has become exigible. Currencies other than euro are converted by using the exchange rate of each of these currencies to the euro.
Art. 27, Para. 3, item 3 is revoked. According to item 1 and item 2 of the newly created Para. 4, in case of supply under concession contracts for construction, service or production, where the remuneration is fully or partially determined in goods or services, the tax base as of the time of occurrence of the tax event is the agreed remuneration, and for supply from the concessionaire to the grantor – the tax base at the acquisition or the cost of the service provided.
In Art. 51 Para. 6 is created, according to which for delivery of goods with continuous performance under Art. 7, Para. 1 - 4 with duration longer than 1 calendar month, the tax event occurs at the end of each calendar month.
In Chapter 11, Art. 111a is created, regulating the documentation of deliveries with a place of performance on the territory of the country. According to Para. 2 the documentation of deliveries with a place of performance on the territory of another country is also performed under the same procedure, when the independent business activity of the entity is settled on the territory of this country or its permanent facility is situated on the territory of the country, and the entity is not settled in another Member State or its permanent facility in this country does not take part in the delivery. According to Para. 3, under these conditions, the documentation of deliveries with a place of performance on the territory of a third state is also performed under the same procedure.
In Art. 114 Para. 7 – 11 are created. They regulate the invoice details and the use of electronic invoices for documentation of deliveries.
The additional provisions stipulate legal definitions of the terms “main activity” within the meaning of Art. 70, Para. 2, item 5; “authenticity of the origin” and “entirety of the content”. It is also stated there that VATA is harmonized with Directive 2010/45/EU of the Council from July, 13 2010 for amendment of Directive 2006/112/EC.
With AASVATA amendments have been also made in a number of other legislative acts: the Tax-Insurance Procedure Code, the Social Security Code, the Health Insurance Act, the Act for Guaranteeing the Receivables of Workers and Employees in Case of Insolvency, the National Revenue Agency Act, the Corporate Income Tax Act etc.